Child Custody and Support

Question 1

Child custody and support

Answer 1

The best interest of the child is the primary and controlling
consideration of the Court in all child custody controversies. In determining custody, the court will consider, in particular the following factors:

(1) Welfare of the children/best interests of the children
(2) child’s reasonable preference
(3) domestic violence, including physical and sexual abuse
(4) historical primary caretaker
(5) character, fitness, attitude and inclinations of parents

(6) psychological, physical, environmental, spiritual,
educational, medical, family, emotional, and recreational
aspects of each child’s life

(7) immoral conduct detrimental to the welfare of the child
(8) religion
(9) written agreement between parties

The court will not consider:

(1) gender bias
(2) race
(3) so-called “tender years:

Question 2

Illegitimate Children

Answer 2

Unless a court otherwise orders, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. Established paternity permits the father to seek custody or visitation.

The court has power to order joint or divided custody if it is in the best interests of the child.

Question 3

Parent v. Third Party

Answer 3

Custody may be awarded to non-parents when the parents are deemed unfit or when the parents relinquish their rights (Moore v. Moore). In a contest between a parent and a non-parent, the court must determine:

(1) whether the parent is fit and able to care for the child and provide a good home

(2) the amount of contact (e.g., visits, financial support) the
parent had while the child was in the care of a third party

(3) the circumstances under which temporary relinquishment occurred
(4) the degree of attachment between the child and the temporary custodian.

A rebuttable presumption favors the parent over a third party, so that in nearly every case, the parent prevails in the custody determination.

Question 4

Visitation Generally

Answer 4

Generally : The parent without custody has the right to reasonable visitation, as agreed by the parties, or per the discretion of the court in the best interests of the child. A parent may forfeit rights to visitation by engaging in conduct injurious to the child’s welfare or morals. The family court may impose restrictions or conditions on visitation, but a total denial is rare. The family court may award visitation to a person who has committed domestic violence if the safety of the child and the victim of domestic abuse can be protected.

Visitation is independent of support : A noncustodial parent’s obligation to support children is independent of that parent’s visitation rights. A parent cannot withhold support if visitation is denied, nor can a parent withhold visitation to force payment of support.

Question 5

Standard Visitation

Answer 5

Standard visitation : The standard visitation schedule is every other weekend, two to six weeks in the summer, and alternating holidays.

Question 6

Remedies for Denial of Visitation

Answer 6

Remedies for denial of visitation : Where the custodial parent denies the noncustodial parent reasonable visitation, the court may

(1) award extra visitation to compensate for the lost time, in a manner not to interfere with the best interest of the child
(2) award custody or primary residence to the noncustodial parent, if it is in the best interests of the child
(3) punish by contempt of court or other remedies as the court deems appropriate

Question 7

Grandparents

Answer 7

Grandparents : The family court may order periods of visitation for the grandparents of a minor child where either both parents are deceased, or the parents are divorced or are living separate and apart.

To order grandparent visitation, there must be a written finding that the visitation rights:

(1) would be in the best interests of the child
(2) would not interfere with the parent-child relationship

The court must further consider nature of the relationship between the child and grandparents prior to filing of the petition or complaint.

Before visitation can be awarded over a parent’s objection,

(1) the parent must be shown unfit by clear and convincing
evidence, OR

(2) compelling circumstances must exist to overcome the
presumption that the parent’s decision is in the child’s best
interest.

Question 8

Psychological Parents

Answer 8

Psychological parents : (Middleton v. Johnson) A psychological parent is one who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support. A third-party qualifies as a psychological parent when:

(1) the biological or adoptive parent[s] consented to and
fostered the formation and establishment of a parent-like
relationship with the child

(2) the petitioner and the child lived together in the same
household

(3) the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation, and

(4) the petitioner has been in a parental role for a length of time sufficient to have establish with the child a bonded,
dependent relationship parental in nature.

Question 9

Guardian ad Litem

Answer 9

Patel v. Patel addresses the role of and circumstances necessitating a GAL in custody and visitation disputes. A GAL may be an attorney or a layperson and must be at least 25 years old, possess a high school diploma, complete a minimum of six hours of family law education annually, complete an initial 9 hours of legal education relating to custody and visitation, and observe three contested custody merits hearings.

The duties of a GAL include

(1) representing the best interests of the child

(2) conducting an independent, balanced, and impartial
investigation (including meeting with and observing the
child on at least one occasion)

(3) advocating for the child’s best interest by making specific and clear suggestions for evaluation, services, and treatment for the child and the child’s family
(4) attending all court hearings related to custody or visitation issues
(5) maintaining a complete file
(6) presenting comprehensive written reports, including a final report regarding the child’s best interest.

Question 10

Modification of Custody Orders

Answer 10

Modification of custody orders

All custody orders are modifiable. The party seeking the change must show a substantial change of circumstances affecting the child’s welfare.

Question 11

Support

Answer 11

Both parents equally share a duty to support their children although certain circumstances may cast a greater burden on one than the other.

Support is governed by the Child Support guidelines from DSS, which sets the presumptive amount. A court may deviate from the presumptive amount with justification.

Parties may agree to different support amounts subject to review and approval by the court. If combined income exceeds $180K, child support is to be decided on a
case by case basis. Medical expenses get shared by the parents.

Question 12

Procedure for Child Custody Order/Modification

Answer 12

Procedure : For any proceeding in which child support is to be established or modified, the procedure is as follows:

(1) File financial statements
(2) Calculate total support
(3) Assign percentages (depending on whether custody is joint or divided)

Question 13

Imputing Income

Answer 13

Imputing income : Income will be imputed to a voluntarily
unemployed or underemployed parent under the guidelines unless there is physical or mental incapacity, or other circumstance over which the parent has no control.

Question 14

Deviating from the Child Support Guidelines

Answer 14

Deviating from the guidelines : A number of factors may justify deviation:

(1) educational expenses for the children or the spouse
(2) equitable distribution of property
(3) consumer debts
(4) families with more than 6 children
(5) unreimbursed extraordinary medical or dental expenses for a parent
(6) mandatory deduction of retirement pensions and union fees

(7) support obligations for other dependents living with the
noncustodial parent

(8) child-related unreimbursed extraordinary medical expenses
(9) monthly fixed payments imposed by a court or by operation of law

Question 15

Change in Custody based on Remarriage and Relocation

Answer 15

Remarriage and relocation : Remarriage of the custodial parent does not usually warrant a change of custody unless the remarriage will require relocation of the child outside of SC. SC no longer observes a presumption against permitting relocation. As in all custody issues,
the controlling considerations are the child’s welfare and best interests.

Factors to consider in whether to change custody based on relocation of the custodial parent:

(1) each parent’s reasons for seeking or opposing the move
(2) the quality of the relationships between the child and each parent
(3) the impact of the move on the quality of the child’s future contact with the noncustodial parent
(4) the degree to which the custodial parent’s and child’s life may be enhanced by the move
(5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements
(6) the potential advantages of the proposed move
(7) the likelihood the move would substantially improve the quality of life for the custodial parent and is not merely the result of a whim
(8) whether the cost of transportation is financially feasible by one or both parents
(9) whether the move is in the best interests of the child
(10) significant available income of the child or children
(11) substantial disparity of income favoring the custodial parent
(12) alimony
(13) agreements reached between the parties
(14) non court-ordered child support from another relationship.

Question 16

Temporary Child Support Order Pending a Determination of Paternity

Answer 16

The Family Court is required, upon motion of either party, to issue a temporary child support order pending an administrative or judicial determination of paternity if

(1) defendant has signed a voluntary acknowledgement of
paternity

(2) defendant has been determined to be the parent pursuant to law

(3) there is other clear and convincing evidence that the
defendant is the child’s parent.

Question 17

Avoiding Child Support Obligations

Answer 17

Any transfer of income or property for the purpose of avoiding a child support obligation is clearly and utterly void.

Question 18

Interest on Support

Answer 18

Interest may accrue on child support or alimony arrearages and should be calculated from the time each payment is due.

Question 19

Cessation of the Duty to Support and Educations

Answer 19

The duty to provide support ceases at emancipation.

The court has the authority to include in a support order the expense of educating his or her child. The court may, however, only order child support for higher education beyond 18 where there is evidence that

(1) child’s characteristics indicate child will benefit from
education,

(2) child demonstrates ability to do well or at least make
satisfactory grades,

(3) child cannot otherwise go to school, AND

(4) parent has the financial ability to help pay for such an
education.

A parent may, however, contractually obligate himself to pay education expenses beyond the age of majority.

There is no requirement to pay college expenses when the settlement agreement is silent, even when one parent has already paid.

Question 20

Modification of Alimony, child support or visitation

Answer 20

Modification of alimony, child support, or visitation

Legal burden : Alimony and child support awards, visitation, and custody arrangements can be modified upon a showing of substantial change in circumstances or financial ability of either party.

Factors considered in determining a whether a change of
circumstances is substantial for child support are:

(1) changes in the parent’s finances
(2) implications of remmariage on parties relative economic positions relative to alimony
(3) changes in the child’s needs.

Alimony awards : If the court awarded no alimony or lump sum alimony and did not reserve jurisdiction to award alimony in the future, there is no award to modify, and all rights to alimony are terminated. The issue of alimony may be revisited y the court if the final order indicates that the court has reserved for determination the amount of an alimony award.